Davidson v. State

Decision Date29 August 1990
Docket NumberNo. 10S00-8707-PC-628,10S00-8707-PC-628
PartiesLatine Marie Gordon DAVIDSON, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

Michael T. Forsee, Public Defender, Jeffersonville, for appellant.

Linley E. Pearson, Atty. Gen., Lisa A. McCoy, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Justice.

A jury trial resulted in appellant's conviction of two counts of Murder, for which she was sentenced to two consecutive enhanced terms of sixty (60) years each for a total executed sentence of one hundred twenty (120) years, plus court costs of $71. Appellant now comes before us via Ind.R.P.C.R. 2 upon her belated direct appeal.

The facts are: In the early morning hours of July 23, 1983, police were called to appellant's address regarding a possible infant drowning. Appellant's daughter, Shaccara, was transported to the hospital, but resuscitation measures failed to revive her. Appellant calmly explained that Shaccara had been suffering convulsions in the night, that she had put her in the bathtub to reduce her fever, and that after heating a bottle in the kitchen, she returned to the bath to find the baby face down and limp in the water.

Dr. Frances Masser, the pathologist who performed the autopsy on Shaccara, testified the baby's death was consistent with fresh-water drowning. She stated that a 14-month-old child would hold her head above water unless she were rendered unconscious, which would require some form of injury or disease leaving signs apparent during an autopsy, and that no such signs were found. Dr. Masser also testified that an adult easily could drown a 14-month-old child simply by holding her head under five to six inches of water.

On June 20, 1983, appellant had applied for AFDC welfare payments, and on July 5, 1983, she was denied payments. On July 7, appellant was informed that a policy on Shaccara's life, previously maintained by her deceased mother, would lapse unless she took over paying the premiums. Appellant was then beneficiary of the policy. She agreed to do so, obtained some cash from a person then present and paid the premium. In December of 1983, appellant received $5000 in benefits from the life insurance policy on Shaccara.

In October of 1983, appellant gave birth to a son she named Rodrigues Sanchez Escabar Felicciones, and two weeks later they moved to Louisville to live with one Darrell Cook. Two months later she moved in with her aunt, Dodie Benedict, in New Albany, but left 2-month-old Rod with Juan Davidson at the latter's mother's home in Jeffersonville, where appellant herself moved in May of 1984.

In June of 1984, appellant, Rod, and Juan moved in with Linda Jones and her husband in New Albany. At this time, appellant was six months pregnant, and while living with the Joneses she married Juan Davidson. Linda Jones testified that while the Davidsons lived in her home, appellant took care of Juan while Juan took care of Rod; that appellant wished aloud that Rod were not around because Juan spent more time with Rod than with her; and that appellant disciplined Rod by holding him upside-down in the bathroom and smacking his bottom with the sole of a wet shoe.

Also while living with the Joneses, appellant took out a life insurance policy on Rod worth $3000; this coverage lapsed after two months due to nonpayment. The selling agent testified that appellant had been disappointed at her inability to purchase vastly greater coverage on Rod's life.

In October of 1984, appellant gave birth to another son, who she named Mersherjuan Olean Davidson. Appellant and her husband, Juan, both were unemployed at this time, and after a partial denial of A.F.D.C. benefits, they moved back into the home of Juan's mother, Lola Davidson, about one month after Mersherjuan's birth. Appellant made it apparent that she disliked this arrangement and tolerated it only because she was unable to afford a home of her own.

On January 3, 1985, appellant contacted an agent for the National Life & Accident Insurance Company and applied for a policy on Rod to become effective that same day. For a monthly premium of $18.47, she purchased a policy having a face value of $20,000 with an accidental death (double indemnity) rider. The selling agent testified that at the time of writing Rod's policy, he was unaware of his company's regulation imposing a $10,000 ceiling on policies written to insure the lives of children whose parents receive A.F.D.C. benefits.

On the following day, Juan found 14-month-old Rod dead in the bathtub. Rod was taken by ambulance to the Clark County Hospital, where the emergency room physician attempted resuscitation but pronounced him dead thirty-five minutes after arrival. The doctor testified he found Rod's mouth and lungs full of frothy water but could find no signs of any bruising, swelling, lacerations or abrasions. He also testified that there was no reason why a 14-month-old child could not right himself after falling into six inches of water unless he were to be rendered unconscious, which would leave some sign of the trauma causing the loss of consciousness.

On the day of Rod's demise, appellant had awakened around eleven a.m. and then had run a bath for herself and Rod. She next took Rod downstairs, fed him, and watched soap operas with her mother-in-law Lola and a neighbor, Betty Johnson, until around one p.m. when appellant remarked she was going to put Rod down for his nap with her husband Juan, who was still in bed.

After taking Rod upstairs, appellant left the house to buy a bag of beans, ostensibly because there was no food in the home. After returning from the store, she complained of cramps and back pain and went to lie down in Lola's downstairs bedroom. She then arose and obtained Betty Johnson's permission to go to the latter's apartment down the hallway to use her telephone. After appellant left, Juan got up and discovered Rod lying in the water in the bathtub.

Various witnesses testified to appellant's unemotional demeanor subsequent to the discovery of Rod's drowning. When Juan's brother, James, started that evening to cook the beans appellant had purchased at the store, she told him not to cook the beans because she needed them for evidence. Appellant closely tracked news coverage of Rod's death and corrected out loud one article which reported Rod had been found with his arms extended from his sides; she stated his arms had lain next to his sides, and then added that Juan had told her this fact.

Betty Johnson's daughter, Regina, testified appellant had told her that she was assured of collecting Rod's life insurance proceeds because his death would be resolved either as accidental or as the result of Lola's child neglect. Appellant also told Regina of her plans to buy a car, take a honeymoon trip with Juan, and move into a house of their own.

Instead, however, the police investigation led to a coroner's inquest, a grand jury investigation, and a Child In Need of Services (CHINS) proceeding concerning appellant's remaining child, Mersherjuan. After consulting with her attorney, appellant made an agreement with the prosecutor to undergo a polygraph examination into the circumstances of the deaths of Shaccara and Rodrigues, stipulating the results would be admissible in any subsequent trial. The polygraph examiner concluded appellant was not telling the truth about her children's deaths. Consequently, she was charged with the murders of her two children, which charges were joined for trial and culminated in the instant convictions.

Appellant contends the trial court erred in denying her pretrial motions to dismiss the indictment and to sever the offenses for separate trails. She argues that, under Ind.Code Sec. 35-34-1-11, she was entitled to separate trials as a matter of right because the murder charges were joined for trial "solely on the ground that they [were] of the same or similar character;" that the State charged the two murders together so as to be able to file a death penalty request upon the ground, set forth in Ind.Code Sec. 35-50-2-9(b)(8), that the defendant had committed another murder; and that she was prejudiced by the joinder because the jury was likely to infer a criminal disposition on her part to commit infanticide.

Appellant cites State v. McCormick (1979), 272 Ind. 272, 397 N.E.2d 276 for the proposition that in order to avoid unduly prejudicing the jury by exposing them to evidence of two murders, separate murder trials are required to support a death penalty count under Sec. 35-50-2-9(b)(8). In McCormick, both the defendant and the State stipulated that the killings were not related or connected in any way. However, in the case at bar, the murders are related; thus McCormick is not applicable. Here, the murders were joined for trial and, while convictions for both would have been prerequisite to sustaining a death recommendation under subsection b(8) of the statute, no danger existed of doing so upon a lesser standard of proof than beyond a reasonable doubt, and because the jury did not recommend the death penalty, appellant in fact suffered no prejudice in the penalty phase. Thus the gist of appellant's complaint is her contention that the instant murder charges were not sufficiently related to properly be joined for trial.

Indiana Code Sec. 35-34-1-9(a) allows joinder of offenses in the same indictment or information when the offenses:

"(1) are of the same or similar character, even if not part of a single scheme or plan; or

(2) are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan."

Indiana Code Sec. 35-34-1-11(a) grants a defendant an absolute right to severance of offenses which have been joined "solely on the ground that they are of the same or similar character."

Appellant first argues her motion to sever should have been granted as a matter of right because the charges were joined solely because they...

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